Ebanks

This is an appeal by the defendant from an order of the superior court made after judgment, fixing the day for the execution of a judgment of death, under section 1227 of the Penal Code.

The appellant was convicted in the superior court of the county •of San Diego of the crime of murder in the first degree, and was sentenced to suffer the death penalty. He appealed from the judgment and from an order denying his motion for a new trial, and the judgment and order were affirmed by this court on August 23, 1897; and the remittitur .was received and filed in said •superior court on the twenty-fifth day of September, 1897. The day for the execution'of the judgment having passed during thé pendency of the appeal, he ivas on the thirtieth day of September; 1897, brought before the superior court under the provisions of said section 1227 of the- Penal Code,, and an order was on that *628 day made fixing the eighth day of October, 1897, for the execution of the judgment. From this order the present appeal is taken.

Owing to circumstances not necessary to be here related, the judgment was not executed on said eighth day of October ; and, as that day was passed before the present appeal…